1. The interpretation of a statute given by the administrative agency charged with enforcing
that statute generally is entitled to great judicial deference. However, final construction of
the statute rests with the courts.

2. Under the 1987 amendments to K.S.A. 44-501(g), the Workers Compensation Act is to
be liberally construed for the purpose of bringing both the employer and the employee
within the provisions of the Act. Once the Act is found to apply, the provisions of the Act
must be applied impartially to both employers and employees.

3. When an employee receives workers compensation benefits under K.S.A. 1997 Supp.
44-510e(a) based upon a work disability rating and then returns to work at a comparable
wage, the employee's entitlement to any benefits for a functional impairment following his
return to work must be determined by calculating the number of weeks of compensation
the employee would be entitled to receive as provided in K.S.A. 1997 Supp. 44-510e(a).
Once this entitlement is determined, the employer is entitled to credit for the number of
weeks which it paid work disability compensation. If the number of weeks the employer
paid work disability benefits exceeds the number of weeks the employee is entitled to
benefits for functional impairment, the employee is not entitled to any additional benefits
upon his return to work.

The statute in effect at the time of Wheeler's injury sets forth the following
formula for calculating weekly benefits for permanent partial disability:

"The amount of weekly compensation for permanent partial general disability shall be
determined as
follows:

(1) Find the payment rate which shall be the lesser of (A) the amount determined by
multiplying
the average gross weekly wage of the worker prior to such injury by 66 2/3% or (B) the
maximum
provided in K.S.A. 44-510c and amendments thereto;

(2) find the number of disability weeks payable by subtracting from 415 weeks the total
number
of weeks of temporary total disability compensation was paid, excluding the first 15 weeks of
temporary
total disability compensation that was paid, and multiplying the remainder by the percentage of
permanent partial general disability as determined under this subsection (a); and

(3) multiply the number of disability weeks determined in paragraph (2) of this subsection
(a) by
the payment rate determined in paragraph (1) of this subsection (a).

"The resulting award shall be paid for the number of disability weeks at the full payment
rate until
fully paid or modified. . . . In any case of permanent partial disability under this section, the
employee
shall be paid compensation for not to exceed 415 weeks following the date of such injury, subject
to
review and modification as provided in K.S.A. 44-528 and amendments thereto." K.S.A. 1997
Supp. 44-510e(a).

Under this formula, an employee entitled to receive PPD benefits gets a full two-thirds of
his regular gross weekly wage, up to the statutory maximum, even if he or she
continues to work. The length of time the employee receives those weekly benefits,
however, is determined by the amount of temporary total disability (TTD) benefits the
employee received and the disability rating attributable to the injury. The higher the
disability rating, the longer period the employee receives PPD benefits.

The current benefit formula of K.S.A. 1997 Supp. 44-510e was the result of
substantial amendments made to the Workers Compensation Act by the 1993
legislature. L. 1993, ch. 286, § 34. Prior to the 1993 amendments, PPD benefits were
calculated differently. All injured employees were entitled to up to 415 weeks of PPD
benefits, but the weekly benefit was two-thirds of his or her regular gross weekly wage
multiplied by his or her disability rating. Thus, an injured employee received less every
week, but for a longer period of time. See K.S.A. 1992 Supp. 44-510e(a).

Wheeler was injured on February 27, 1994, while working for The Boeing
Company (Boeing). He was treated medically and was off work, receiving TTD
benefits, for 24.5 weeks.

Wheeler was eventually released to return to work, but, by that time, Boeing had
eliminated his position. Wheeler pursued a claim against Boeing and eventually
received 115.14 weeks of PPD benefits.

Boeing later offered Wheeler a position at a comparable wage. After Wheeler
returned to work, Boeing filed an application for review and modification of Wheeler's
award, asking that the work disability award be modified and that Wheeler's benefits for
his functional impairment rating be limited.

The administrative law judge (ALJ) entered a modified award, finding that after
the date Boeing offered Wheeler a position at a comparable wage, Wheeler was only
entitled to benefits based upon a 10.5% functional impairment.

The ALJ calculated that Wheeler was entitled to 42.58 weeks of compensation
for the functional impairment rating but gave Boeing credit for the 115.14 weeks of work
disability compensation previously paid. Accordingly, the ALJ concluded that Wheeler
was not entitled to any further compensation.

Wheeler appealed to the Board, which affirmed the ALJ's calculations. The
Board found that based upon the 1993 amendments to the benefit formula of 44-510e,
"[c]redit must be given for the previous number of weeks paid at the higher disability
rate or the claimant would potentially receive permanent partial disability benefits that
exceed the benefits required to be paid by statute." Wheeler appeals.

Wheeler concedes that his entitlement to PPD benefits based on a work
disability rating ceased on October 31, 1996, when Boeing returned him to work at a
wage comparable to what he was earning prior to his injury. Wheeler argues, however,
that the ALJ and the Board erred in interpreting K.S.A. 1997 Supp. 44-510e in
determining that he had received all the benefits he was entitled to receive for his
10.5% functional impairment rating.

The interpretation of a statute given by an administrative agency charged with
enforcing that statute generally is entitled to great judicial deference. Such
interpretation may, in fact, be entitled to controlling significance in judicial proceedings.
As a general rule, if there is a rational basis for the agency's interpretation, it should be
upheld on judicial review. See City of Wichita v. Public Employee Relations Bd., 259
Kan. 628, 630, 913 P.2d 137 (1996).

"'While the administrative interpretation of a statute should be given
consideration and weight, it does not follow that a court will adhere to the administrative
ruling where the statute is clear and the administrative ruling is erroneous. The final
construction of a statute rests within the courts.'" In re Tax Appeal of McKee, 19
Kan.
App. 2d 43, 48-49, 861 P.2d 1386 (1993) (quoting In re Tax Appeal of Atchison,
Topeka & Santa Fe Ry. Co., 17 Kan. App. 2d 794, Syl. ¶ 2, 844 P.2d 756
[1993]).

Here, the Board determined that its methodology was the most reasonable
method of calculating modified awards. The Board reasoned that credit must be given
for the previous number of weeks paid at the higher disability rate or Wheeler could
potentially receive PPD benefits exceeding those required by statute. Under the
Board's interpretation, when an employee's compensation changes from work disability
to functional disability (or vice versa), he or she would be entitled to a minimum of
benefits based upon the lowest disability rating. Moreover, the employer will never be
liable for more than the maximum benefits based upon the highest disability rating.

Wheeler essentially raises three policy arguments to support his position. First,
Wheeler argues that the Workers Compensation Act must be construed in favor of the
worker. Second, Wheeler argues that his formula recognizes the distinction between
work disability and functional disability awards. Finally, Wheeler argues that using
Boeing's formula reduces an employee's incentive to return to work following a work
disability.

Kansas law no longer states a general principle that the Workers Compensation
Act be construed in favor of the worker. In 1987, the Kansas legislature added what is
now subsection (g) to K.S.A. 44-501. L. 1987, ch. 187, § 1. That subsection states:

"It is the intent of the legislature that the workers compensation act shall be liberally
construed
for the purpose of bringing employers and employees within the provisions of the act to provide
the
protections of the workers compensation act to both. The provisions of the workers
compensation act
shall be applied impartially to both employers and employees in cases arising thereunder."
(Emphasis
added.) K.S.A. 1997 Supp. 44-501(g).

Although functional impairment and work disability are calculated differently and
are designed to compensate for different types of losses, the compensation is still
based upon damages caused by one work-related injury. An employee is entitled to
only one recovery for his work-related injury. The Board's methodology recognizes the
one-injury concept by giving the employer credit for the PPD benefits previously paid,
whether those benefits were for work disability or functional disability. The amount of
benefit does not change when an employee's work disability status changes; the only
change under the current statute is the length of time the employee is entitled to
receive benefits. Nothing in the 1993 amendments reflects the legislative intent to treat
functional impairment and work disability as two separate and independent benefits to
which the employee is entitled.

Finally, Wheeler contends that the Board's methodology is incorrect because it
does not serve the purposes of K.S.A. 1997 Supp. 44-510e--to create incentives to
return injured employees to work. Wheeler contends that employees will be
discouraged from returning to work at comparable wages if they know their benefits will
be terminated. Wheeler also argues that with his methodology, employers would still
be encouraged to bring injured workers back, even if they have to pay some functional
impairment benefits, because the employer will still be paying benefits for a shorter
time.

Clearly, the purpose of limiting work disability benefits to those injured workers
who cannot earn comparable wages was designed, in part, to encourage employers to
return injured employees to work, even at accommodated positions. The carrot to the
employer is to reduce the employee's benefits from a work disability rating to a
generally lower functional impairment rating. See Griffin v. Dodge City Cooperative
Exchange, 23 Kan. App. 2d at 147-48. This incentive is even greater if the Board's
methodology is used, thereby entitling the employer to full credit for permanent partial
work disability benefits previously paid.

The better public policy, we conclude, is that if the employer can establish the
employee is capable of earning comparable wages, the employee's right to work
disability benefits ends, even if the employee fails to accept such alternative
employment. See Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 887 P.2d 140
(1994), rev. denied 257 Kan. 1091 (1995). The risk of losing work disability
benefits,
regardless of whether the employee actually returns to work, is incentive enough for the
employee to accept work when it becomes available.

We conclude that Wheeler's arguments must be rejected and approve the
Board's methodology, finding that it is reasonable and consistent with the Workers
Compensation Act.